United States District Court, E.D. Michigan, Southern Division
DORREON D. MCBRIDE, Petitioner,
GREG SKIPPER, Respondent.
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS
AND DISMISSING PETITION WITHOUT PREJUDICE
PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE
D. McBride, a Michigan state prisoner, has filed a pro
se petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. He challenges his convictions for first-degree
premeditated murder, Mich. Comp. Laws § 750.316, assault
with intent to murder, Mich. Comp. Laws § 750.83,
carrying a concealed weapon, Mich. Comp. Laws § 750.227,
and possession of a firearm during the commission of a
felony, Mich. Comp. Laws § 750.227b. Now before the
Court is Respondent’s Motion to Dismiss.
a jury trial in Wayne County, Petitioner was convicted and
sentenced as follows: life imprisonment without the
possibility of parole for first- degree murder, 20 to 40
years for assault with intent to murder, 2 to 5 years for
carrying a concealed weapon, and 2 years for felony firearm.
The Michigan Court of Appeals affirmed his convictions,
People v. McBride, No. 333637, 2018 WL 521824 (Mich.
Ct. App. Jan. 23, 2018). The Michigan Supreme Court denied
leave to appeal, People v. McBride, 502 Mich. 904
(Mich. 2018), and denied a motion for reconsideration,
People v. McBride, 503 Mich. 876 (Mich. 2018).
November 6, 2018, Petitioner filed the pending petition for a
writ of habeas corpus. Respondent filed a motion to dismiss
the petition on the ground that it contains an unexhausted
claim. Petitioner has filed a response in opposition to
raises three claims in his habeas petition:
I. Forfeiture of liberty without procedural due process where
Petitioner was arrested without Miranda warnings ...
and placed within a penal prison institution ... Petitioner
was given a Constitutional Rights Certificate having
Miranda warnings on them and instructed to sign a
the bottom. ... No. modifications were made to this prison to
accommodate arrestees. This constituted a forfeiture of
liberty before procedural due process was given to Petitioner
by the courts ...
II. Ineffective assistance of counsel.
III. The Michigan Court of Appeals erred in its analysis of
defense counsel’s objection and the trail court’s
See Pet. at 6-9, ECF No. 1, Pg. ID 5-8.
argues that the first claim is not properly exhausted because
Petitioner failed to raise the claim in the Michigan Court of
Appeals or Michigan Supreme Court.
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. §2254 must first exhaust all state court
remedies. See O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999) (“[S]tate prisoners must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s
established appellate review process”). To exhaust
state court remedies, a claim must be fairly presented
“to every level of the state courts in one full
round.” Ambrose v. Romanowski, 621 Fed.
App’x 808, 814 (6th Cir. 2015). See also Wagner v.
Smith, 581 F.3d 410, 418 (6th Cir. 2009) (“For a
claim to be reviewable at the federal level, each claim must
be presented at every stage of the state appellate
process.”). A petitioner bears the burden of showing
that state court remedies have been exhausted. Nali v.
Phillips, 681 F.3d 837, 852 (6th Cir. 2012).
states that he raised Claim I for the first time in a pro se
supplemental brief to the Michigan Supreme Court. Raising a
new claim for the first time to a state’s highest court
on discretionary review does not constitute fair presentation
of the claim to the state courts. Skinner v.
McLemore, 425 Fed. App’x 491, 494 (6th Cir. 2011),
citing Castille v. Peoples, 489 U.S. 346, 349
(1989). A prisoner must comply with the exhaustion
requirement as long as there is still a state-court procedure
available for him to do so. See Adams v. Holland,
330 F.3d 398, 401 (6th Cir. 2003). In this case, a procedure
is available. Petitioner may file a motion for relief from
judgment in the Wayne County Circuit Court under Michigan
Court Rule 6.502. If ...